#### ALTHEA COGBURN v. IRA L. HENSON.

(Filed 2 June, 1920.)

1. Courts— Terms— Expiration— Consent of Parties — Continuance of Term.

The term of the court expires when the judge finally leaves the bench whether the statutory time has expired or not, and motions to set aside the verdict of a jury or other like action in the case cannot be entertained at the next term, except by consent of the parties.

2. Same — Reservation of Rights of Parties.

An agreement by the parties to an action, the last case on trial at the expiration of the term, that “the judgment may be signed out of term and out of the county” in effect continues the term in so far as it affects the particular matter, but reserves the right to each party to have the judge exercise the discretionary powers over the verdict, invested in him by law, and his action in setting the verdict aside in his discretion, at the next subsequent term of the court, is within the purview of the agreement, and valid. This custom is discouraged by the Court, as a bad one.

3. Same — Signing Judgments — Ministerial Acts.

The mere signing of the judgment, upon the verdict, is a ministerial act which requires no agreement of the parties for it to be done after term. Knowles v. Savage, 140 N. C., 372, modified.

Walker, J., dissenting.

Appeal from Bay, J., at July Term, 1919, of Haywood.

Tbe trial ended on Saturday afternoon, tbe last day of tbe term. Tbe jury bad not returned tbeir verdict at 4:45 p. m. and tbe trial judge desiring to board a train scheduled to depart at 4:51 p. m., bad tbe following entry made by consent of counsel for plaintiff and defendant:

“It is agreed by tbe counsel for tbe plaintiff and tbe defendant tbat tbe jury may return tbeir verdict to tbe Olerk, and tbat tbe judgment may be signed out of term and out of tbe county.”

*632The judge then left the court to board the train, and the jury after-wards returned a verdict in favor of the defendant. No judgment was signed at the July term, but at the following (September) term his Honor entered the following:

“In this cause, the same being tried at the July Term, 1919, of this court, and a verdict on the issues found by the jury in favor of the defendant, and counsel agreeing that the court might sign judgment out of term, and out of the county; the court now, in its discretion and upon its own motion, set the verdict in said case aside and orders the case to be reinstated on the civil issue docket of this court to the end that a new trial be had upon issues submitted before another jury.”

Defendant appealed.

G. S. Ferguson and J. Bat Smathers for plaintiff.

W. J. Hannah and J. T. Horney for defendant.

Clark, C. J.

When the judge finally leaves the bench at any term of court, the court expires whether the week has ended or not. Detafield v. Construction Co., 115 N. C., 21, and citations thereto in Anno. Ed.

Uotion to set aside the verdict, or take other action in the case ai the next term, cannot be entertained, except by consent, because to do this would be to permit in effect an appeal from one Superior Court judge to another, and of course if this were allowable an appeal from such action could be taken to the next term of the Superior Court, and so on ad infinitum. Even if the judge before whom the motion is made at the next term of court were the same judge his memory of the evidence would be dimmed by the lapse of time.

While this is so, it has been the custom that when the judge is leaving after trying the last case at the term, an agreement of coimsel that the verdict may be taken by the clerk and that the judgment thereon may be signed at any. other time or place within the district, is not unusual. It may be said that it is a bad custom, and very frequently leads to. inconvenient results, as in this case. It ought to be discountenanced and is only tolerated as a matter of convenience to avoid going over the trial again when all other matters of the court have been disposed of and counsel do not wish to detain the judge to await the result of the deliberations of the jury.

In this case, the usual agreement was made that.the judgment should Be signed by the judge at any other time and place, and the sole question is what is the just and reasonable construction of such agreement. It is the right of every litigant that after the verdict is brought in by the jury the party against whom it is rendered can move to set aside the verdict, if against the weight of the testimony, or contrary in the opin*633ion of tbe judge to justice. It is not reasonable to suppose tbat either side to tbe agreement in tbis case intended tbat it should be deprived of tbis supervisory power which tbe law from time immemorial has yested in tbe presiding judge to review and supervise tbe action of tbe jury. Tbe jury may have misunderstood tbe evidence, or tbe charge of tbe Court, and sometimes may have been misled by tbe able arguments of counsel, or by local or personal bias. For tbis reason tbe losing party whoever be may be, has tbe right to have tbe judge supervise tbe verdict, and while be cannot reverse tbe action of tbe jury there must be tbe judgment of tbe court rendered after due deliberation upon tbe finding of tbe jury. As a great judge once said, in reviewing tbe action of tbe jury, on a motion to set aside tbe verdict, “It takes 13 men in tbis court to deprive a man of bis land, bis rights, or bis liberty.” It is not to be presumed tbat either party to tbis action contemplated such waiver of bis rights to have tbe judge supervise tbe action of tbe jury. It must expressly appear by tbe agreement tbat such waiver was made of tbis important right.

Tbe only reasonable and just construction of tbis agreement is tbat when tbe jury brought in their verdict in tbe absence of tbe judge tbe case should stand, precisely in tbe same light as it would have stood if tbe judge bad been present, and tbe verdict was rendered, and for tbe purposes of tbis ease, tbe term was constructively extended so tbat at any other time and place in tbe district tbe judge, counsel of both sides being present, should bear such motions as could have been beard if be bad been present at tbe return of tbe verdict, and should take such action as be could have done under such circumstances. Tbe agreement was tbat for tbe purposes of tbis action tbe term of tbe court was prolonged and tbis case should be treated by tbe judge as if tbat term of tbe court were in session. Tbe judgment should then be rendered. No agreement was necessary as to a mere formal signing.

It is true tbat tbe agreement might have been made longer and more explicit, but tbe one entered was tbat which is usually made and was intended only to transfer tbe case after verdict, or rather continue it, in tbe same plight and condition to be beard before tbe judge upon such motions as could have been made bad tbe judge remained and received tbe verdict, and be should render judgment.

Tbe only case tbat bears a contrary construction is Knowles v. Savage, 140 N. C., 372. With all respect to tbe distinguished'judge who wrote tbat opinion, for a unanimous Court, we think tbat tbis view of tbe matter was not presented nor passed upon; and tbat in view of tbe result of such ruling in depriving tbe losing party of tbe right to have tbe verdict reviewed, which be would have bad if tbe court bad remained in session, tbat part of tbe opinion in Knowles v. Savage should be not *634followed. A blind adherence to precedent may have a far worse effect in depriving parties of tbeir rights guaranteed by law, and in proper instances and when no property rights will be affected the opinion will be modified or overruled.

There are weighty reasons why this should be done in this case rather than deprive any party, “unbeknownst to himself” of his legal rights, and thus continue a practice which cannot subserve the ends of justice, which require that in every case the losing party should have the right to apply to the judge to revise and set aside the verdict, or at least to have his opinion upon it before he renders his judgment. An agreement to waive such rights must be explicit.

If the court had rendered judgment then signing it would have been a mere ministerial act, for which no agreement was necessary. The essential matter is that the judge should render judgment and until that has been done there has been no legal conclusion of the controversy.

There is no stipulation in this agreement that the judge should sign judgment “in accordance with the verdict.” "We should not insert these words. In literal compliance with the agreement he has signed judgment but the judgment is his own judgment, which in accordance with the power vested in him he has made “in his discretion and of his own motion,” setting aside the verdict because against the weight of the evidence. And this judgment should be

Affirmed.

Walker, J.,

dissenting: The plaintiff alleged that defendant, who is her brother, had committed a fraud upon her in drawing a deed by which he was directed to divide certain land equally between them, their father having given the direction,' as part of the land belonged to him and he desired that plaintiff should have one-half of it. The deed was so drawn and executed, as to give the defendant thirty acres more than the plaintiff, his sister. The action was brought to recover damages for the fraud. Issues were submitted to the jury and answered in favor of the defendant.

The trial was concluded on Saturday, the last day of the term, but the jury did not deliver their verdict until 4:45 o’clock p. m. The judge desiring to take the eastbound train for Asheville, N. C., the following order was entered in the minutes by consent: “It is agreed by the counsel for the parties that the jury may return their verdict to the clerk, and that the judgment may be signed out of term and out of the county.” The judge then left the courthouse to catch the train and went on it to Asheville. The jury returned the verdict to the clerk after the judge had left. No further action was taken in the case until September Term, 1919, when the same judge, of his own motion, set aside the verdict by the following order:

> *635“In tbis cause, tbe same being tried at tbe July Term, 1919, of tbis court, and a verdict on tbe issues found by tbe jury in favor of tbe defendant, counsel agreeing that tbe court might sign judgment out of term, and out of tbe county, tbe court now in its discretion, and upon its own motion, sets aside tbe verdict in said case and orders tbe case to be reinstated on tbe civil issue docket of tbis court to the end that a new trial be bad upon issues submitted before another jury.” To tbis order, tbe defendant excepted and appealed.

Tbe question we have before us is one as to tbe judge’s power to set aside tbe verdict under tbe agreement of tbe parties as made at July Term, 1919. My opinion is that, under a former decision of tbis court, be bad no such power, as it was held unquestionably, that an agreement, like tbe one in tbis case, does not authorize such action by him. Tbis question arose some years ago and tbe Court fully considered it in Knowles v. Savage, 140 N. C., 372. Tbe Court, in that case, stated it to be conceded, that a motion to set aside a verdict for insufficient testimony must be made before tbe judge who tried tbe case, at tbe term in which tbe verdict was rendered (Rev., 554); Moore v. Hinnant, 90 N. C., 163; Turner v. Davis, 132 N. C., 187, and tbe judgment must be entered during tbe same term, unless otherwise agreed by tbe parties. Tbe same contention, as here made, was tbe identical one put forward in that ease, which is that an agreement authorizing tbe judge to sign tbe judgment after tbe adjournment of tbe court for tbe term, included tbe power to bear and determine a motion for a new trial, or to set tbe verdict aside, for error in fact or law, but tbe Court rejected tbis view, as it was not based on a reasonable construction of tbe agreement. It is urgently insisted that tbis was error, and that such an agreement, obviously implies, that preliminary motions, for a new trial etc., may be submitted and passed upon. We admit there is great force in tbe contention. They argue that neither party would take tbe risk of tbe judge having tbe power to sign a judgment, not knowing what tbe verdict would be, without tbe right of appeal and review. If be did, it would be very imprudent on bis part, and greatly jeopardize bis interests, and perhaps destroy them. If be could move for a new trial when there was error in law, or to set aside tbe verdict, as being against tbe weight of tbe evidence, or because tbe damages allowed by tbe jury are excessive, or for any other good, and valid reason, important and valuable rights might be saved. For tbis and other reasons they insist that tbe parties intended to retain tbe benefit of those remedies which are essential to preserve their rights, when error has been committed by tbe court or jury. Tbe argument may be plausible, and quite persuasive, in support of their position, but it has been thoroughly considered and weighed by tbe Court, and failed to produce conviction as *636to the correctness of plaintiff’s view. The Court, in Knowles v. Savage, supra, said that signing a judgment is a ministerial act, involving no exercise of judgment or discretion, and, if omitted for any reason, could be done at a subsequent term, as decided in Ferrell v. Hales, 119 N. C., 199, but that hearing and determining a motion to set aside a verdict is a different matter, as it calls for recollection of the testimony, manner, and demeanor of witnesses, and other incidents of the trial not likely to be impressed upon the memory of the judge, so that he may safely act upon them after adjournment. The Court then gave this admonition: “While convenience of counsel often occasions, and usually justifies, outside agreements of the character made in the ease, they frequently lead to confusion and irregularity in the administration of justice. The court will not by construction extend their terms beyond the fair and reasonable import of the language used. We concur with his Honor that he had no power after the adjournment of the term to hear and pass upon the motion.” The difference in the views thus presented is, that one adopts a literal or strict construction, and the other a liberal construction of the agreement with the purpose of giving effect to the presumed intention of the parties. ' The ease of Knowles v. Savage, supra, was cited in Stilley v. Goldsboro Pl. Mills Co., 161 N. C., 517, but there was no agreement in that case by the parties as to signing the judgment after the term of court had expired; it was simply a motion to set aside a verdict in vacation because of newly discovered evidence, which was made in term, but continued for hearing to the next term of the court, by order of the judge, in the absence of the plaintiff and his counsel. The Knowles case was also cited in Pfeifer v. Drug Co., 171 N. C., 214, but the point in this case was not presented. The court simply entered judgment on a verdict rendered at a former term, which was held to be regular and according to the course and practice of the court.

There is, at least, sufficient doubt, as to the true meaning of the agreement, to call for an adherence to the principle, that cases should not be lightly overruled, and not at all except where there is clear and manifest error. The Knowles case, was a well considered one, and the opinion written by an able and learned judge, and its right to continuance as a precedent is supported, at least by the fact that it construes the agreement according to the language of the parties to it, and the form of expression they selected to declare its meaning as it was understood by them at the time, while the Court’s view requires construction of it, by inference or implication as to what it means. The parties had the right to make the agreement, as it is confining the action of the judge to the mere signing of the judgment. All this but tends to show that the question is not so entirely free of doubt as to justify overruling Knowles v. Savage, supra.

*637It would baye been easy under a contrary decision, for parties to frame such agreements, so as to provide that the judge shall have the same power and jurisdiction as if all matters had been disposed of in term, and thereby preserve the right to- make all motions and review all decisions of the court by appeal.

If we are to abide by precedent, and adhere to our former decisions, we should have held that Knowles v. Savage is fatal to the plaintiff’s present contention, and therefore there was error. It follows that the order of the judge should have been set aside, the verdict reinstated and judgment entered thereon in accordance with the law, as declared in the Knowles case.

I shall, though, hereafter accept this decision of the court and abide by its construction of such agreements as it is only a question of procedure, which should be finally decided, and closed.